Without Notice Applications (formally Ex parte Application)

The general idea, which was cited by Hoffman J in First Express Limited [1991] BCC 782 is that an Order should not be made against a party without that party being given an opportunity to be heard. However, it is possible to make an Application without notice to the Respondent.

In a ‘with notice Application’ an Applicant must serve a copy of the Application Notice on the Respondent as soon as practicable after it is filed. This will be at least 3 days before a Hearing or 5 days if the Hearing is to be by telephone.

The Court may grant an interim remedy without notice where there is a good reason for not giving Notice. These ‘good reasons’ are where giving notice may defeat the purpose of the application such as (1) search Orders or freezing injunctions (2) Court has no record of the other side. This could happen when extending time for serving a claim form or issuing a part 20 claim (3) where the party cannot be identified.

Where giving notice is likely to cause the applicant injustice through delay or action which the Respondents may take before the Court Order may be made. Where damage is suffered by a Respondent as a result of complying with an Order then the Applicant may be required to make an undertaking in damages (i.e. a payment of funds to the Court possibly payable to the Respondent).

Practice direction 23A.3 states that an application may be made without serving an Application Notice only where (1) there is an urgency (2) the overriding objective is furthered by doing so (3) all parties consent (4) the Court grants permission.

By Michael Coyle at Lawdit Solicitors, Southampton.




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